The protection of journalistic sources in Belgium: what do you need to know?

Source protection for journalists working in Belgium. 

The Act of 7 April 2005 on the Protection of Journalistic Sources protects journalists from investigative measures (such as the interception of communication, surveillance and judicial home search and seizure) if this could breach the secrecy of their sources. Since this Act applies not only to Belgian journalists, but also to the many international journalists based in Brussels or elsewhere in Belgium (who report on bodies such as the EU institutions or NATO), the importance of this Act surpasses the Belgian context.

The 2005 Belgian Act on the Protection of Journalistic Sources

The new Act on the Protection of Journalistic Sources was enacted on 7 April 2005 (by unanimous vote in the Chamber of Representatives).[1] The Act took into account the relevant case law of the European Court of Human Rights (ECtHR), although it could not prevent subsequent condemnations of Belgium by the ECtHR based on facts committed under the old legislation.

The Act substantially reduces the risk of journalists seeing their sources disclosed. Under Article 4 of the Act, journalists and editorial staff can only be forced by a judge to disclose information sources if these are of a nature to prevent crimes that pose a serious threat to the physical integrity of one or more persons, and if the following two conditions are cumulatively fulfilled: (1) the information is of crucial importance for preventing such crimes and (2) the information cannot be obtained by any other means. Under Article 5, the same conditions apply to investigative measures (searches, seizures, telephone tapping, etc.) taken with respect to journalistic sources.

The Act gives a broad definition of the journalists and editorial staff who are protected by it, and an equally broad definition of the type of information it protects.[2]  Following a decision of the Constitutional Court, the Act covers all individuals who exercise an informative activity, whether or not they are professional journalists (for instance, the protection includes bloggers).[3]

The AGJPB/AVBB, the main representative organisation of professional journalists, and the associations of the written press publishers were some of the main pressure groups that lobbied for the enactment of this act.  The Act has received international praise, for instance from Privacy International, which considers it the most comprehensive law in Europe on the protection of sources. The Belgian Act also served as an inspiration for the drafting of new source protection laws in Iceland, in the framework of the Icelandic Modern Media Initiative.

For more background information on the Belgian Act on the Protection of Journalistic Sources, visit my separate blog post on freedom of expression and freedom of the press in Belgian media law.